Mackinac Center Settles Transparency Lawsuit with DEQ

Legislative clarity still needed for FOIA timeliness

Wednesday, November 8, 2017

Patrick Wright
Vice President for Legal Affairs
(989) 698-1933

MIDLAND — The Mackinac Center Legal Foundation has reached a settlement with the Michigan Department of Environmental Quality over the state department's delayed response to a Freedom of Information Act request.

On March 30, 2016, the Mackinac Center asked for all emails sent by two DEQ employees between 2013 and 2015 that mentioned the Flint water crisis as well as the names of any employees who were transferred, reassigned or suspended as a result of the crisis.

The DEQ estimated it would need no more than four and a half hours to fulfill the request, but told the Mackinac Center it would not have the documents ready until July 29 — 121 days after the request was initially sent and 84 days after the DEQ cashed the Center’s check for $114.35 to cover the costs of the request. Subsequently, the Mackinac Center Legal Foundation sued the DEQ for its slow response time.

“People have a right to timely transparency from their government,” said Patrick Wright, vice president for legal affairs at the Mackinac Center. “We don’t think four months qualifies as timely.”

Court of Claims Judge Cynthia Stephens appeared to agree when in December of 2016 she rejected DEQ’s claim that the four-month delay did not violate FOIA as a matter of law.

Nevertheless, the Mackinac Center and the DEQ settled the suit, agreeing that while the department’s response was slow, the more important issue is ambiguity in the state’s transparency laws.

“Michigan’s Freedom of Information Act gives concrete deadlines for government agencies to request extensions and respond to initial requests, but lacks clarity on how quickly the actual documents themselves must be provided,” Wright said.

Slow FOIA response times are not limited to the DEQ. The Mackinac Center recently settled a similar suit with the University of Michigan, which took over 100 days to provide documents it said would take less than three hours to collect.

“This ambiguity is a serious problem that has led to a lack of transparency in multiple government offices,” Wright said. “It’s time to close this loophole.”

Earlier this year, Rep. Gary Glenn, R-Midland, requested an opinion from Attorney General Bill Schuette to clarify what constitutes a reasonable amount of time in Michigan’s FOIA law. The Mackinac Center agreed to settle in part to avoid interfering with issuance of that opinion, which will be binding on all state agencies and provide guidance to all local governments.

“Prompt issuance of this opinion is more important than a judicial finding and small fine that could occur if this matter had been taken to trial,” Wright said. “We hope the forthcoming AG opinion will serve as a springboard for discussion and analysis for legislation that would clarify when documents must be provided to comply with FOIA.”

To read a joint statement about the settlement from the Mackinac Center and the DEQ, click here.
To read Rep. Gary Glenn’s request to the Attorney General, click here.
For more background information about this case, click here.

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